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As the debate regarding how ANC MPs should
vote in the forthcoming motion of no confidence in President Jacob Zuma rages
on, I stumbled upon an old research paper about South Africa’s experience with
constitutions and the role of Parliament in ensuring accountability.

What is interesting about the impending
motion against Zuma is that the Constitutional Court has been approached to
decide whether MPs should be allowed to vote using a secret ballot. The view is
that ANC MPs are so scared of the president and his crew that the only way
those MPs will be able to vote freely is if they can vote secretly.

The UDM consequently went to the highest
court in the land to request that the court orders a secret ballot just to protect
these MPs from ANC bullies. While we wait for the court to tell the opposition to
go back and nicely request the bullies to stop intimidating ANC MPs, it is
important to look at this question beyond President Jacob Zuma by reflecting on
our constitutional development.

The process of constitutional development
is an interesting one and South Africa’s experience in this regard dates back
to the 1909 Constitution, which provided for the Union of South Africa under
the King of Britain. As a nation however, we prefer to assess our
constitutional development by focusing only on the post-apartheid
constitutions; the 1993 Interim Constitution and the 1996 Constitution.

We omit the other three constitutions that
were adopted prior to the democratic dispensation in South Africa. Those are
the 1909 Constitution, the 1961 Constitution, and the 1983 Constitution.

These constitutions respectively passed through
them a distinct tradition regarding how the executive had to relate to Parliament
when it comes to accountability. This tradition, which shows how the executive
subdued Parliament, was also passed into the post-apartheid constitutions;
despite the fact that our democratic constitutions provided for the separation
of powers and constitutional supremacy.

Looking at those old constitutions of South
Africa, it is clear that a tradition of executive supremacy was passed from one
constitution to another in the form of rules and practices. Back in 1909 when
the King of England used to run the show in South Africa, the 1909 Constitution
allowed for the king to be a member of Parliament, which he could also dissolve.
As the head of government the king could not meaningfully be brought to account
by Parliament. Both the 1961 and the 1983 constitutions of South Africa also
allowed for the head of the executive, the president, to be part of Parliament.

It was only in the post-apartheid
constitutions (the 1993 and the 1996 constitutions) that the legislative
authority was vested in Parliament and the state president was not allowed to
remain a member of Parliament once elected president.

However, the post-apartheid constitutions does
allow for members of Cabinet to also vote in Parliament. Thus, effectively
members of Cabinet do not lose their membership to Parliament after being
appointed. This is odd in the sense that members of Cabinet can actually vote
on a motion of no confidence; a motion that would impact their positions as Cabinet
ministers.

Even more interesting about the forthcoming
motion is the submission in court by President Jacob Zuma that the court ought
not to prescribe to Parliament on how to handle the motion. As the head of the
executive, Zuma’s submission is at odds with the principle of separation of
powers, even if he is trying to tell the court not to venture onto the
legislature’s terrain.

Some have pointed to our electoral system
as being responsible for the poor level of accountability and the jellyfish-attitude
shown by ANC MPs when it comes to holding the executive to account. The mere
fact that our democratic Constitution does not disallow members of Cabinet to
participate in the motion as MPs is an indication that the problem has to do
with the tradition that has been passed from one constitution to another,
dating far back.

The old constitutions show that South
Africa always had a strong tradition of executive supremacy where Parliament
has been dominated by the executive, including the state president. This is
part of our constitutional development, and it is a feature that continues to
be present in our democratic Constitution. President Jacob Zuma’s own executive
indulgence makes thing worse; however executive indulgence is a tradition that
has always been part and parcel of constitutional development in the
country.

The framers of our democratic Constitution made
good strides in shifting South Africa away from the tradition of executive
dominance. However, the rules and practices in Parliament and some of the
provisions in the very Constitution show that the tradition of executive
dominance is well entrenched in our political system as shown across different
types of regimes in the country going as far back, as I will further show in my
subsequent articles on the subject.

There are many reasons as to why the motion
of no confidence will likely remain the motion of no consequence. Some of those
reasons have nothing to do with ANC MPs or the electoral system. It is rather a
matter of tradition that has remained in the country for more than hundred
years.

- Ralph Mathekga is an independent political analyst and author of the book When Zuma Goes. He writes a weekly column for News24.

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